Tomlinson v. Tomlinson

189 So. 718, 138 Fla. 481, 1939 Fla. LEXIS 1431

• Court: Supreme Court of Florida
• Decided: June 6, 1939
• Status: Published

Opinion

Per Curiam. —

This appeal is from a final decree awarding plaintiff a divorce from defendant a vinculo matrimonii.

Plaintiff husband filed his second amended bill of complaint seeking a divorce from defendant on the grounds of (1) habitual indulgence in a violent and ungovernable temper; (2) extreme cruelty, and (3) adultery.

After filing her motion to furnish better particulars in the second amended bill of complaint, the defendant wife filed her answer denying the material allegations of the second amended bill of complaint. Defendant also incorporated in' her answer a counter-claim, asking for divorce from plaintiff on the grounds of (1) habitual indulgence in a violent and ungovernable temper and (2) extreme cruelty; and asking for such alimony, attorney’s fees and division of the property as shall seem to the court just, equitable and reasonable.

Plaintiff answered the counter-claim, denying the material allegations contained therein, demanding strict proof as to the allegations not denied, and praying for dismissal of the counterclaim.

Testimony was taken before Hon. E. K. Mcllrath, as special master, who found the equities to be with plaintiff, found the defendant guilty of adultery and of extreme cruelty towards plaintiff, found $200.00 to be a reasonable fee for defendant’s attorney and recommended that plaintiff, be granted a divorce from defendant a vinculo matrimonii.

Exceptions were taken to the report of the special master.

After final hearing and argument by counsel, the chancellor entered final decree overruling the exceptions to the special master’s report; finding the equities to be with plaintiff. and. against defendant; finding the defendant guilty of adultery and extreme cruelty to plaintiff as alleged; allowing defendant’s solicitor $200.00 in addition to the sum already paid; allowing the special master a fee of $100.00; and granting plaintiff a divorce from defendant a vinculo matrimonii. No division of property, was made by the final decree.

The defendant appealed from this final decree.

The questions presented relate to the sufficiency of the evidence to support the findings and the adjudication contained in the final decree.

The evidence in this record is sufficient, if believed by the chancellor, upon which a decree could be entered awarding plaintiff a divorce on the ground of adultery. Since this is true, it becomes unnecessary for us to determine whether the evidence was sufficient to Support the decree on the ground of extreme cruelty.

Therefore, no harmful error having been made to appear in the final decree below, it is accordingly affirmed.

Affirmed.

Whitfield, P. J., and Brown and Ci-iapman, J. J., concur. Terrell, C. J., concurs in opinion and judgment. Justices Buford and Thomas not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.